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Minimum terms

High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003

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Case No:  2004/20/MTS
Case No:  2004/21/MTS
Neutral Citation Number:  [2005] EWHC 3366 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL

 Date: 2 December 2005

Before :


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Between :

The Queen

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Duane Butler
Joanne Patricia Butler

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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As Approved by the Court

Crown copyright©

1. On 1 March 2002 after a trial at Lincoln Crown Court the defendants were convicted of murder.   They were sentenced to life imprisonment.   I recommended that the first defendant should serve a minimum period of 17 years in custody, the second defendant 15 years.   The Lord Chief Justice reduced my recommendation in respect of the first defendant to 16 years.   No term having been set by the Home Secretary it is for me to set it.

The facts

2. In my report to the Home Secretary I summarised them in the following way.  

“Duane Butler was born on 22 May 1967.   He had a number of previous convictions, including 6 for offences of violence: 2 for unlawful wounding.   Joanne Patricia Butler was born on 20 April 1971.   Although she had convictions, only one was for an offence of violence and that was a long time ago.

The deceased was born on 2 January 1953.   He too was an alcoholic.   He had a conviction for common assault on his daughter.   A misunderstanding about the nature of that conviction led to his being attacked and killed.

The  were husband and wife, having married in April 2000.   They were both alcoholics.   At the material time the Defendants and the deceased were staying at 147 Goldsmith Walk, Lincoln.   During the night/early morning of 16/17 May 2001, the Defendants  inflicted the fatal injuries on the deceased.   John Ablett, another alcoholic, who lived nearby, witnesses events towards the end of the attack on the deceased.   Having heard Ablett give evidence, I am sure he was basically telling the truth about what happened.   There was independent evidence which supported significant aspects of what he said.

At about 2.45 AM the First Defendant woke up Ablett.   The First Defendant was affected by drink and possibly drugs.   He asked Ablett to come to 147 Goldsmith Walk.   He said he had something to show him.   In the living room of 147 were the deceased and the Second Defendant.   The Second Defendant had a knife in her hand.   She too was affected by drink and possibly drugs.   The deceased was slumped naked and half-conscious on a chair.   He had been attacked.   His face was bleeding.   His lower body, from the stomach down, had been injured.   It had been cut, sliced and burned.

Having heard the medical evidence, I am sure that before Ablett arrived, among other things, hot liquid was poured over the deceased.   Among the burn marks were those from a hot knife having been placed on the skin: the ‘branding’ injuries.

The First Defendant spoke of the deceased having sexually assaulted his (the deceased’s) daughter.   He described the deceased as a ‘nonce.’   Both Defendants spoke in terms of killing the deceased:  ‘he was a nonce and deserved to die.’   The Second Defendant had a knife in her hand.   She pushed the deceased on to the floor.   The First Defendant took a knife too.   He prodded the deceased with it.    He picked up a lit camping gas stove and burnt or sought to burn the deceased with it.   The First Defendant also heated up the knife and burned the deceased on the skin with it.   The Defendant picked up the deceased and put him on the chair.   The Second Defendant stabbed the deceased in the nipple area with the knife.

Ablett dragged the deceased from the flat.   The Second Defendant did nothing when he was doing so.   The First Defendant, among other things, stamped on the deceased’s testicles.

When being assaulted, the deceased sometimes spoke.   He said things as ‘I didn’t do anything.   It was not me.’

Ablett took the deceased from the flat.   He called the ambulance.   When the deceased was admitted to hospital, 10% to 15% of his body area was burnt.   There were 25 ‘branding’ injuries.   There were stab and cut marks.   These injuries were superficial.   The deceased died from multi-organ failure on 27 May 2001.   Had he not suffered from cirrhosis of the liver, it is likely he would have survived.

On 17 May, they were heard speaking in terms of getting 15 years for what they had done.

When arrested, they denied any involvement in the attack on the deceased.   They told many and similar lies.

Although more violence was perpetrated by the First Defendant when Ablett was present, there appears little to choose between them.   She had a knife in her hand when Ablett arrived.

  The First Defendant gave evidence.   The Second Defendant did not.”

3. I set out the aggravating and mitigating features in the following way.

“Although Ablett said he was only in the flat for 10 minutes at the most, this was a prolonged attack on a helpless man.   Much of it had happened by the time Ablett arrived.   I have no doubt the First Defendant went and asked Ablett to see what had happened, because the Defendants were proud of what they had done.   The single most aggravating feature was the nature of the attack on the deceased.   It is not an exaggeration to say their conduct amounted to torture.

The  Defendants had plainly concocted a story by the time they were seen by the police.

The First Defendant had a significant record for violence.   When violent in the past, he had been affected by drink.

  Lack of remorse.”

The information now before me.

4. I have read letters from Elizabeth Mather, the wife of the deceased, Claire Mather and Melanie Mather, both daughters of the deceased.   In a recent letter dated 29 September 2005 Melanie Mather, understandably, complains about the delay in setting the minimum terms for the two defendants.   Although of little consolation to her or the other members of the family, the reason was nothing to do with what she mentions in the letter.   It was to do with the change in the law after the Defendants’ convictions.   The letters from the members of the family underline how they have suffered as a result of the applicants’ conduct.  

5. On behalf of the first defendant, I have read a letter from his solicitors of 29 August 2002.   It is said, among other things, that the episode was not premeditated but spontaneous, that he now accepts his part in the incident, that as a result of accepting the enormity of his actions he is on prescribed medication for depression, that he is sorry, that he is resolved to use his time in custody constructively, and that an appropriate minimum term would be one of 16 years.

6. On behalf of the second defendant detailed representations have been made.   She admits the offence.   She speaks of feeling extreme remorse for her role in the offence.   It is said there was no intention to kill.   There was no premeditation.   Her progress in prison is apparent from the information I have.

The appropriate minimum terms

The Criminal Justice Act 2003 schedule 21.

7. This murder was committed in May 2001.  The minimum term which I must set may not be any longer than the minimum term which would have been set by the Home Secretary under the practice which he would have followed at the time.  It must reflect the aggravating and mitigating features of the offence. Recommendations by the trial judge and the Lord Chief Justice were then based on the guidance given by the then Lord Chief Justice, Lord Bingham, in a letter he sent to judges on 10 February 1997.   Lord Bingham said that his practice was to take 14 years as the period actually to be served for what was described as the normal or unexceptional murder.   As his successor Lord Woolf said in Sullivan [2004] EWHC Crim 1762, in most cases the Home Secretary fixed the minimum term in accordance with the recommendation of the trial judge and the Lord Chief Justice. 

First Defendant

8. It seems to me the aggravating features which I set out in my report to the Home Secretary still apply to the first applicant.   He moreover played a leading role.   There was not the mitigation of a plea of guilty.   Given those seriously aggravating features I am still of the view that 17 years is the appropriate minimum term.  It does not seem to me the Home Secretary would have fixed a minimum term different from that.  

The Second Defendant

9. I bear in mind what is submitted on her behalf.   It does not seem to me that an appropriate minimum term would be the 12 years suggested.   The defendant participated in an attack involving the most appalling violence on the deceased.   She does not have the mitigation of a plea of guilty.   It seems to me that 15 years is the appropriate minimum term in her case.   Again, I believe that is the term which would have been fixed by the Home Secretary.


11. Each defendant spent 9 months on remand.   Those periods should be set off against the minimum terms.   In the case of Duane Butler, that would result in a sentence of 16 years 2 months and 23 days, in the second defendant’s case of 14 years 2 months and 23 days.   The early release provisions should apply after those terms have been served.

12.   I want to make two final points in this case.  First, the terms I have set are minimum ones.  They, or one of them, may well serve longer terms.  Second, I am conscious that no minimum term can be sufficient for the relations of the deceased.

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